2006-09THIS INSTRUMENT PREPARED BY
AND SHOULD BE RETURNED TO:
• RUSSELL W. DIVINE, ESQ.
Divine & Estes, P.A.
Post Once Box 3629
Orlando, Florida 32802-3629
AGREEMENT
for
CONSTRUCTION OF LIFT STATIONS and FORCE MAIN
(Nottingham at Legends)
THIS AGREEMENT entered into and made as of the ~ day of L C~ 2006, by and
between the CITY OF CLERMONT, FLORIDA, (hereinafter referred to as ~e "CITY"), and
LENNAR HOMES,-INC., a Florida corporation (hereinafter referred to as the -"LENNAR").
WITNESSETH
WHEREAS, LENNAR is the owner and developer of the Nottingham at Legends subdivision
• lying within the municipal boundaries of the City of Clermont; and more particularly described in
Exhibit "A" (hereinafter referred to as the "Property"); and
WHEREAS, in order to develop Nottingham, LENNAR is relying on the CITY to construct a
wastewater lift station on Tract I of Nottingham, which lift station will service all or a portion of the
lots on Nottingham; and
WHEREAS, LENNAR has completed development of the lots in Nottingham but cannot build
on said lots until the lift station is completed; and
ti/HEREAS, the expedited construction of the lift station and related improvements is of benefit
to LENNAR and the CITY and the CITY is willing to allow LENNAR to construct the lift station, as
well as certain additional improvements, provided LENNAR agrees to pay the expenses related to the
construction as they are incurred and City will reimburse LENNAR on a monthly basis as hereinafter
set forth.
NOW THEREFORE, in consideration of the mutual promises and covenants herein contained, the
City and agree as follows:
SECTION 1. RECITALS
The above recitals are true and correct and form a material part of the Agreement.
SECTION 2. OWNERSHIP & LEGAL DESCRIPTION OF PROPERTY
LENNAR represents that it is the present owner of the land platted as NOTTINGHAM AT
• LEGENDS. The legal description of said land, which is herein referenced as the "Property", is set forth in
Exhibit "A" Legal Description attached hereto and by this reference made a part hereof.
SECTION 3. TITLE TRANSFER.
As part of the plat of Nottingham, LENNAR has dedicated Tract I to the CITY free and clear of
• all liens, mortgages, easements, and other encumbrances. In return, the CITY is obligated to construct a
Lift Station on said Tract I to service the Properly.
SECTION 4. CONSTRUCTION OF IMPROVEMENTS
CITY hereby agrees to permit LENNAR to construct the Improvements (defined below) on the
following basis:
A. Plans and Specifications.
Boyle Engineering has prepared and CITY has approved, a complete set of signed and sealed
Plans and Specifications entitled "South Lake Connector Force Main and Lift Stations" dated October
2005 and revised May 2006 (the "Plans"). The Plans are expressly incorporated herein and made a part
hereof by reference. LENNAR shall construct or caused to be constructed Lift Station #3 and the force
main shown on the Plans (the "Improvements"). The construction shall be completed in accordance with
all terms and conditions of the plans and specifications, referenced above, including but not limited to the
construction timetable, testing, and insuranc_ a requirements related to the project and as more particularly
described in the Plans and Specifications. Except as may otherwise be agreed by the parties, LENNAR
shall not be responsible for constructing anything shown on the Plans as future or later improvement.
The CITY at its sole expense, shall obtain all required regulatory and governmental approvals and
- permits which are necessary in order to construct the Improvements in accordance with the Plans.
B. Construction Contract
LENNAR shall be responsible to negotiate, select and enter into a contract with a qualified
contractor for the construction of the Improvements based on the Plans and Specifications.
. C. Construction.
LENNAR shall begin construction of the Improvements within a reasonable time after CITY
obtains issuance and delivery of all of the permits and approvals required for construction of the
Improvements. Thereafter LENNAR shall diligently pursue such construction until completion.
LENNAR shall construct the Improvements and install all related facilities in a workmanlike manner in
accordance with the Plans and applicable governmental codes and regulations.
D. Reimbursements
LEN~dAR agrees to cons«uct sari Improvements described above, and agrees to pay for said
item, with reimbursement from the CITY of LENNAR'S actual cost, provided the cost is no greater than
the ONE MILLION ONE HUNDRED AND TWO THOUSAND AND SEVEN HUNDRED DOLLARS
(1,102,700.00} ("Cost Limit"}. Reimbursement by CITY for the costs of any improvements beyond those
defined herein, or costs in excess of the Cost Limit shall require a change order approved by the City
Council of CITY prior to the improvements requested in the change order being made or costs being
incurred with respect to the subject matter of the change order. The CITY hereby agrees to reimburse
LENNAR for any additional and reasonable costs incurred above the Cost Limit due to mistakes by, or
actions on the part of, the CITY, its engineers or any of its agents or consultants. The foregoing
notwithstanding, if any portion of the Improvements are not constructed in accordance with the
Plans, the CITY shall have no obligation to reimburse LENNAR for any costs it incurs to correct
such improper installation. Upon receipt of invoices from its contractor, LENNAR shall submit to the
CITY a copy of the invoice for review. Such invoice/statement shall provide reasonable detail as to the
work performed and materials provided. CITY shall pay each such approved invoice/statement within
• thirty (30) days of the date on which it is submitted by LENNAR.
The CITY hereby acknowledges and agrees that the Cost Limit has been determined based on
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the October 2005 Plans for a portion of the anticipated improvements. Further, that the October 2005
Plans have been modified and that an initial change order will be forthcoming based upon the changes to
• the Plans ("Initial Change Order"). If the CITY does not approve the Initial Change Order within thirty
(30) days of same being submitted to the City Manager, then LENNAR shall have the option to terminate
this Agreement by written notice to the CITY within ten (10) days after the end of the thirty (30) day
period. Any change order to this agreement, including the Initial Change Order, shall not be presented or
considered by the City Council for CITY unless and until such time as CITY's authorized representative
has been provided the opportunity to review and negotiate the terms of the proposed change order.
SECTION 5. ENFORCEMENT
In the event that enforcement of this Agreement by either party becomes necessary, and such
party is successful in such enforcement, the losing party shall be responsible for all costs and expenses,
including reasonable attorney's fees whether or not litigation is necessary and if necessary, both trial. and
on appeal, incurred in enforcing or ensuring compliance with the terms and conditions of this Agreement.
Interest on unpaid overdue sums shall accrue at the rate of five percent (5 %) compounded annually.
SECTION 6. CURATIVE PERIODS
No default as to any provision of this Agreement on the part of either the CITY or LENNAR
shall be claimed or charged by either party against the other until notice thereof has been given to the
defaulting party in writing, and such defaultremains uncured for a period of thirty (30) days after such
notice, or if the default cannot be reasonably cured within thirty days, the party has not begun the
process to cure the default within thirty (30) days after such notice. Each party hereto shall have the
right to seek specific performance in circuit court for any uncured defaults as to any provision of this
Agreement. In addition thereto, CITY shall, in the event of LENNAR's uncured default hereunder,
CITY may act to complete the construction of the Improvements hereunder, including contracting
directly with LENNAR's contractor, performing the work itself or contracting with a third party. In
such event, LENNAR shall not be relieved of any liability it may have with regard to its default
hereunder. The prevailing party in any litigation to enforce the terms of this Agreement shall be
entitled to reasonable attorney's fees and costs from the defending party associated with said litigation.
SECTION 7. HOLD HARMLESS AGREEMENT
LENNAR hereby agrees to and shall hold the CITY, its elected and appointed boards,
commissions, officers, agents and employees harmless from any liability for damage or claims for
damages for personal injury, including death, as well as claims for property damage which may arise
solely in connection with the construction activities of LENNAR or its respective contractors, agents or
employees in installing the Improvements. LENNAR shall have no obligation to indemnify CITY with
respect to design defects or any failure of the Improvements to operate properly, provided the
Improvements are constructed in accordance with the Plans. Nothing herein shall be interpreted,
construed as or deemed a waiver of any sovereign immunity that CITY may enjoy.
SECTION 8. DURATION OF AGREEMENT
The duration of this Agreement shall commence upon the execution hereof and shall end on such
date as LENNAR receives reimbursement for all the costs it has incurred in connection with the
construction of the Improvements.
SECTION 9. COOPERATION IN THE EVENT OF LEGAL CHALLENGE
In the event of any legal action instituted by a third party or other governmental entity or official
challenging the validity of any provisions of this Agreement, the parties hereby agree to cooperate in
defending such action.
• SECTION 10. NOTICES
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Where notice is herein required to be given, it shall be by certified mail return receipt requested,
addressee only, hand delivery or courier. Said notice shall be sent to the following as applicable:
LENNAR'S REPRESENTATIVES:
Lennar Homes, Inc.
1635 East Highway 50
Clermont, FL 34711
Phone:407-242-1902
Fax No.: 352-243-3103
Attn: Christine Sodermark
With a Required Copies to:
Lennar Homes, Ir.,.c.
1635 East Highway 50
Clermont, FL 34711
Phone: 407-242-1902
Fax No.: 352-243-3103
Attn: Christine Sodermark
CITY'S REPRESENTATIVES:
U
•
City of Clermont, Florida
685 W. Montrose Street, 3`~ Floor
Clermont, Florida 34711
Attn: Wayne Saunders
Phone: 352-241-7355
Fax No.: 352-394-4087
U.S. Home Corporation
Legal Department
10707 Clay Road
Houston, TX 77041
Phone:713-877-2311
Fax No.: 713-877-2471
Should any party identified above change, it shall be said party's obligation to notify the
remaining parties of the change in a fashion as is required for notices herein.
SECTION 11. RECORDING
This Agreement may be recorded, at Owner/Developer's expense, among the Public Records of
Lake County, Florida no later than fourteen (14) days after fall execution. Notwithstanding the foregoing,
the same shall not constitute any lien or encumbrance on title to the Property and shall instead constitute
record notice of governmental regulations which may regulate the use and enjoyment of the Property.
SECTION 12. TIME IS OF THE ESSENCE
Time is hereby declared of the essence as to the lawful performance of all duties and obligations
set forth in this Agreement.
SECTION 13. AGREEMENT TO BE BINDING
This Agreement, including any and all supplementary orders and resolutions, together with the
approved development plan and all final site plans shall be binding upon the CITY and LENNAR and
their successors and assigns in title or interest. The provisions of the Agreement and all approved plans
shall run with the land and shall be administered in a manner consistent with Florida Statutes and local
law.
SECTION 14. ENTIRE AGREEMENT/CONTINUING EFFECT/EFFECT UPON
OTHER AGREEMENTS
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A. This Agreement constitutes the entire agreement between the parties as to the matters set
• forth herein and supersedes all previous understandings, discussions and agreements to the contrary as to
all matters set forth herein whether oral, expressed or implied.
B. No variations, modifications, amendments or changes shall be binding upon the parties
unless set forth in a written agreement executed by all parties of equal dignity herewith.
C. This Agreement may be one in a series of development approvals relating to the
Property. This Agreement shall not operate to supersede, release or satisfy any commitment or condition
in any other development order or permit, nor shall the entry of this Agreement operate to limit the
imposition of terms, conditions and commitments in other development orders or permits unless
inconsistent herewith.
SECTION 15. NON-WAIVER
No consent or waiver, expressed or implied, by either party, to or of any breach or default of
the other party, with regard to the performance by said other party of its obligations under this
Agreement shall be deemed or construed to constitute consent or waiver, to or of, any other breach or
default in the performance of that party, of the same or of any other objection of performance
incumbent upon that party. Failure on the part of any party to complain of any act or failure to act on
the part of the other party in default, irrespective of how long the failure continues, shall not constitute
a waiver by that party of its rights and any remedies that exist under this Agreement, at law, or in
equity.
SECTION 16. GOVERNING LAW; VENUE
This Agreement shall be governed by and construed in accordance with the laws of the State of
• Florida. The Venue for purpose of litigation shall be the Fifth Judicial Circuit in Lake County, Florida.
SECTION 17. CITY'S OBLIGATIONS
This Agreement shall not be deemed to pledge the credit of the City nor to make the City a co-
venturer or partner of LENNAR.
SECTION 18. CONSTRUCTION
A. This Agreement shall not be construed against any party on the basis of it being the
drafter of the Developer's Agreement. The parties agree that the parties herein played an equal part in
reciprocity in drafting this Developer's Agreement
B. Capitalized terms contained herein shall have no more force nor effect than
uncapitalized terms.
C. Captions and section headings in this Agreement are provided for convenience only
and shall not be deemed to explain, modify, amplify or aid in the interpretation, construction or
meaning of this Developer's Agreement.
D. There are no third party beneficiaries to this Agreement. This Agreement is entered
into exclusively for the benefit of the parties herein.
SECTION 19. FURTHER ASSURANCES
Each party hereto agrees to sign any other and further instruments and documents, consistent
herewith, as may be necessary and proper in order to give complete effect to the benefits deriving from
the terms and conditions of this Agreement.
• SECTION 20. SEVERABILITY
If any part of this Agreement is found invalid or unenforceable in any court, such invalidity or
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unenforceability shall not affect the other parts of that Agreement, if the rights and obligations of the
parties contained herein are not materially prejudiced and if the intentions of the parties can be
• affected. To that end, this Agreement is declared severable.
SECTION 21. EFFECTIVE DATE
This Agreement shall not be effective and binding until this Agreement is approved by
and signed by all parties hereto.
IN WITNESS WHEREOF, LENNAR and the CITY have executed this Agreement as of the
day and year first above written.
Signed, Sealed and Deliverer
In the Presence of: LENNAR HOMES, INC.
f~ a Florida corporation
Signature of~Witnes #1 ` Printed Name: rist' a Sodermark
Printed Name: __~~ . ~ I I ~ Title: Execu ' e V' President
.~htt,~d.~ t~ • ~ ~Q,~% MAILING ADDRESS:1635 East Highway 50
Signature of Witness #2 ~- Clermont, FL 32711
Printed Name: r~ ~Q ~j{'{ ~ - (~Gt. r`
• STATE OF FLORIDA
COUNTY OF ~,~,k(~,
i'iz;: foregoing instrument was acknowledged before me this /day of , 2006, by
as of LENNAR HOME5, INC., a Florida co orati n, on behalf
of the company, who is personally known to me or who has produced
C as i en t ication and who did (did not) take an oath.
~' ~ ~•. SUSAN E. DE MARSEILLES otary Public
,., ' r_ MY COMMISSION ~ DD 190435
~ ~'~` Printed Name: c..x,t~1 f 1 LL . Ct rS~
~:. a= EXPIRES: May 9, 2007
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Approved as form and
Legality for use and reliance by the
City of Clermont, lorida.
~'"
U
. Mantzaris, amity Attorney
CITY OF CLERMONT, FLORIDA
By:
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Title:
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Name: f I'14C ~~/`p
Title:
STATE OF FLORIDA
COUNTY OF LAKE
The foregoing instrument was acknowl dged before me this _~ day of
2006, by ar of `ry~ y t ~ 1 ~ and ~ Any P ~ j~/~il,n~,2gk/ t~, th and
Jrr~~ o o • respectively, of the City of Clermont, Florida, who are e pally know o me
a they ac owledged executing the same freely and voluntarily under authority veste m t em and that
the seal affixed thereto is the true and corporate seal of the City of Clermont, Florida and produced
as identification and who did (did
not) take an oath.
N ary Public ~ /,, ~ ~/~
PrintedNameS~/A/l~ (.C~/4~CKE/?'
My Commission Expires: $ - J Q -D (o
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My Commission DD133316
Expires Au~uat 19, 2008
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